Mormons and Cowboys, Moonshiners and Klansmen: Federal Law Enforcement in the South & West, 1870-1893

MorlUons JO)c-:l COlMboys, Moonshiners ~ KlanslUen

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Mormons J0c-::J Cowboys,

Moonshiners~Klansmen I

FEDERAL LAW ENFORCEMENT IN THE SOUTH

&

WEST,

1870-1893

STEPHEN CRESSWELL

The University of Ala-bama Press Tuscaloosa and London

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Copyright © 1991 by The University of Alabama Press Tuscaloosa, Alabama 35487 All rights reserved Manufactured in the United States of America 00

The paper on which this book is printed meets the minimum requirements of American National Standard for Information Science-Permanence of Paper for Printed Library materials, ANSI Z39.48-1984.

Library of Congress Cataloging-in-Publication Data Cresswell, Stephen Edward. Mormons and Cowboys, Moonshiners and Klansmen : federal law enforcement in the South and West, 1870-1893 / Stephen Cresswell. p. cm. Includes bibliographical references and index. ISBN 0-8173-0530-0 (alk. paper) 1. Law enforcement-United States-History-19th century. 2. United States. Dept. of Justice-History-19th century. 3. Law enforcement-Southern States-History-19th century. 4. Law enforcement-West (U.S.)-History-19th century. I. Title. 90-49013 HV8138.C675 1991 CIP 363.2'0975'09034-dc20 British Library Cataloguing-in-Publication Data available.

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Contents

Acknowledgments

vii

I. The Department of Justice and Federal Law Enforcement

1

2. Enforcing the Enforcement Acts in Northern Mississippi

19

3. One Man, One Wife Combating Polygamy in Utah Territory

79

4. Guarding the Treasury in the Southern Highlands Federal Law Enforcement in Eastern Tennessee

133

5. The Anteroom to Statehood The Justice Department in Arizona Territory

181

6. Conclusion

240

Notes

266

Selected Bibliography

302

Index

313

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Acknowledgments

Undoubtedly, the most enjoyable part of preparing this book has been the opportunity to visit the four chief court towns that I focus onOxford, Salt Lake City, Knoxville, and Tucson. I extend my sincere thanks to librarians and archivists in those cities, including the staffs of the University of Mississippi Library, Oxford; the U.S. District Court for Northern Mississippi, Oxford; the archives of the Mormon church at Salt Lake City; the McClung Collection at the Lawson McGhee Public Library in Knoxville; and the Arizona Historical Society at Tucson. Special thanks go to Becky Moreton in Oxford, Mississippi, who in 1982 helped me comb the courthouse attic and basement for records; the search turned up several useful issues of the old Oxford Falcon. In other cities a number of people were very kind and helpful to me, including the staffs of the Federal Records Center at East Point, Georgia; the Arizona State University Library at Tempe; the Department of Archives and History in Jackson, Mississippi; the Hayes Historical Center in Fremont, Ohio; Alderman Library at the University of Virginia; the rare book room of the Brigham Young University Library at Provo; and the rare books, manuscripts, and law collections at the Library of Congress. Above all I thank the archivists of the Judicial, Fiscal, and Social Branch of the National Archives in Washington who helped me use the records of the Department of Justice and the U.S. Supreme Court. This book grew out of a doctoral dissertation I wrote at the University of Virginia. I am especially grateful to a number of teachers and advisers at that school who were of great help to me-Charles W. McCurdy, vii

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viii • Acknowledgments William B. Taylor, David A. Shannon, Daniel Meador, and Michael E Holt. The library staff at West Virginia Wesleyan College has been very supportive, and I thank the college administration for helping me with the costs of interlibrary loan, photocopying, travel for research, and preparation of the manuscript. I especially salute Professor Maxwell Bloomfield of Catholic University, who first made legal history come alive for me. Professor Bloomfield's enthusiasm and keen interest in the subject was contagious, and in the years since taking his courses I have continued to enjoy writing about, and teaching, legal history. My father Ephraim Cresswell, who once served as an assistant attorney general in Mississippi, is responsible for my interest in government, the law, and Mississippi's history. He often served as a first reader and critic of the various chapters. My mother Catherine Cresswell has helped me in more ways than I can name. My wife Teresa Hamm has been the source of happiness that has kept me cheerfully at research and writing. Stephen Cresswell Buckhannon, West Virginia

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MorDlons fO)~ Cow-boys, Moonshiners ~ KlansDlen

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1

The Department of Justice and Federal Law Enforcement

I The Civil War was the greatest project the U.S. government had yet undertaken. Successful mobilization of great armies, factories, farms, and railroads was a signal achievement. In the years after the war the nation grew quickly and in a number of ways. It does not really matter which economic indicators are examined-the growth was stunning. It took only about twenty years after 1870 for railroad mileage, lumber production, and the value of manufactures to triple. In the same twentyyear period the acreage of corn, wheat, oats, cotton, and tobacco doubled, as did the number of cattle being raised on U.S. farms and ranches. The output of the nation's coal mines doubled in these two decades, and the yield of precious metals more than quadrupled. Population did not quite keep up with the economic growth, but the increase nevertheless was healthy. From less than 40 million people reported in the 1870 census, the population grew to more than 62 million by 1890. 1 The federal government was also growing rapidly in this period. New congressional committees, cabinet departments, courts of appeals, and independent commissions, such as the Civil Service Commission, abounded. Recent studies portray the president as growing weaker in the last decades of the nineteenth century, while the executive departments grew increasingly independent of the president and developed closer ties with Congress. And as in the antebellum United States, both courts and political parties played a dominant role in the nation's life.2 1

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2 • Federal Justice Historians Everette Swinney and Robert J. Kaczorowski have pointed to the changes in the nature of national citizenship.3 In the early 1870s federal courts across the nation prepared to assume their new role as the final protector of citizens' basic rights, under a number of laws such as the Civil Rights Act of 1866. But along with new rights came new responsibilities. Among the new demands made on the nation's citizens was the necessity of obeying the federal criminal code, which was not only becoming more voluminous but was also moving into completely new areas. In addition, citizens were called on to serve as witnesses and jurors in ever-increasing numbers of criminal cases. Prior to the Civil War the federal criminal statutes were few in number.4 Among the federal crimes recognized in the antebellum United States were counterfeiting, mail robbery, smuggling, embezzling federal funds, and resisting or impersonating a federal officer. But during and after the war, with the national government growing in power, the list of federal crimes rapidly grew longer. Federal attorneys in all parts of the nation were soon prosecuting violators of new criminal laws. Federal prosecutors tried members of the Ku Klux Klan for "going in disguise upon the public highway," Appalachian mountaineers for moonshining, Mormon settlers of Utah for their practice of polygamy, and New York machine politicians for fraudulently registering ineligible voters. Residents of Minnesota were tried for illegally trading with Indians, while in Dakota Territory prosecutions were initiated against settlers who fenced public lands. This book is designed to probe the realities of federal law enforcement in the late nineteenth century. The method used is the case study, so that each of four central chapters looks at a different judicial district: two in the West and two in the South. Examining these four districts will tell us a good deal about the nation's criminal law enforcement, relations between the federal government and states and local communities, and the workings of the national government itself. These four case studies will also inform us about the relation of the South and West to the rest of the country. For our purposes the United States has been divided into three regions-North, South, and West. The southern region is defined as the sixteen states where slavery existed in 1863 (and therefore includes the border states of Missouri, Kentucky, West Virginia, Maryland, and Dela-

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Federal Justice • 3 ware). The western region includes Dakota Territory, Nebraska, Kans~s, and states and territories to their west. The western region also includes the judicial district of western Arkansas, in which Indian Territory cases were tried-and Indian Territory cases far outnumbered cases for the western counties of Arkansas. The northern region includes Minnesota, Iowa, and all states to the east that are north of the border states named above. Historians have long recognized that the South and West lagged far behind the North in economic development.s The value of northern manufacturing in this period was more than five times that of the South and West combined. More surprisingly, the North also dominated the production of raw materials. As in manufacturing so in the production of nonprecious metals did the North produce five times the output of the two other regions combined, and the North accounted for well over half of the nation's agricultural production. The only major area in which the South or West outproduced the North was the mining of precious metals; the West produced over 99 percent of these important products.6 Given the North's overwhelming economic dominance, it is clear that the relationship of the three regions was not a simple reciprocal one: South and West producing raw materials while the North produced finished goods. The North led the field in both raw and finished products. While northern industrialists did need the raw materials produced in the other two regions, they also looked south and west for markets and for potential fields of investment. The subordinate status of South and West was reinforced by the fact that they had relatively little political power in Washington. Because of their smaller populations, both regions were easily outvoted in the House of Representatives. The North had 185 members in 1880, while the South had 121. The West had only nineteen voting members and a number of voteless territorial delegates. In the Senate the situation was better: The North and South each had thirty-two members, while the West had twelve. In several other measures of power the South and West did not do very well at all. Among the speakers of the House of Representatives and presidents of the Senate during the period 1870--1892, eleven were from the North, two from the South, and none from the West. The Supreme Court justices, who played such an important role in federal law enforcement, included sixteen from the North and three each from

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4

•

Federal Justice

the South and West. No chief justice and no president of the United States was from the West or South in this era. And of the members of the president's cabinet, fifty-seven were from the dominant North, while only fifteen were from the South and two from the West. 7 What all this means, of course, is that throughout the late nineteenth century the government in Washington churned out criminal statutes, Supreme Court opinions, and executive orders and decisions that were inimical to the South and West. Only when leaders of the two regions worked together did their situation improve. In 1890, for example, southern and western senators worked together to support western silver and defeat the "Force Bill" dealing with southern elections. But such conscious collaboration was uncommon. One of the chief unstated goals of many congressmen in this period was to crush unwanted heterogeneity in states and territories. Criminal laws aimed at such "deviants" as Chinese immigrants, Mormon polygamists, Ku Klux Klansmen, and isolated mountaineer distillers were common. To federal law enforcement officers fell the task of working for a uniform, homogenized nation.8 An examination of the statistics of federal criminal cases in the late nineteenth century shows that the South and West differed significantly in several respects from the North. When we look at numbers of cases per 10,000 persons over the period 1871-1890, the differences are striking: • NORTH: • SOUTH: • WEST:

Fourteen cases per 10,000 persons Fifty-four cases per 10,000 persons Seventy-two cases per 10,000 persons 9

The higher number of cases per capita in the South and West is in part related to the fact that Congress passed certain laws that were aimed at these regions, while few criminal laws specifically targeted the North. There was little doubt that the Ku Klux Act of 1871 was aimed at the South, or that the antipolygamy laws were aimed at practices in the western territories, especially Utah and Idaho. What is amazing is that even region-neutral crimes such as postal fraud, embezzlement, and smuggling were at least three times as common in the South and West. Certain elements in southern and western society made the violation of federal laws more common than in the North. Widespread dislike of the federal government flourished in the South in the wake of the Civil War and Reconstruction, along with a

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Federal Justice • 5 belief that criminal law was a state and not a federal matter. Endemic poverty also made remunerative crimes more attractive. In the West crimes were often easier to commit because isolation meant that eyewitnesses could be avoided, and lack of adequate facilities for travel and communication made investigation and apprehension of criminals difficult. The "get rich" mentality of many who went west meant that if one could not find a lode of gold or silver, land fraud or mail robbery could be a viable alternative. In both regions firearms were everywhere, and violence was more acceptable than in the staid North. Io But if in one sense the South and West seem to have tenaciously resisted the enforcement of federal laws, in another sense these two regions were just like the North. Conviction rates for federal cases in the three regions are virtually identical-the rates vary by less than a percentage point. In North, South, and West the conviction rate was about 53 percent for the ten years after 1876. Even if most people in a southern or western community were opposed to the enforcement of a federal law, the prosecutor was able to empanel a jury that was willing to convict. Certain congressional enactments helped federal attorneys obtain juries that would vote for conviction, while many southern and western federal judges encouraged reluctant jurors to convict by handing down an abundance of suspended or very lenient sentences. I I Federal attorneys across the nation faced a number of serious obstacles in their attempts to enforce the criminal laws. The courts ran out of money with alarming regularity, resulting in cases that were delayed or dismissed altogether. The Justice Department, which theoretically directed federal attorneys and other court officers, was exceedingly loath to instruct its subordinates and left them to guess at national policy matters. In the South and West in particular, other problems arose. In many judicial districts in these two regions, federal officers met the overwhelming resistance of a majority of the population. Attorneys and marshals were snubbed, harassed, refused food and lodging; were arrested, sued, threatened, beaten, shot, even poisoned. In many districts the army was called upon to help enforce the laws. When U.S. attorneys or marshals found they had insufficient weapons to fight resistance to the laws, they prodded the attorney general, lobbied Congress, and visited the president. If public opinion was not with them, they published pamphlets, made speeches, sent letters to newspapers, even wrote books. I have here portrayed a partnership in enforcing the federal laws; the

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6 • Federal Justice chief actors are the Justice Department's local field officers such as U.S. attorneys and marshals, and national officials such as the attorney general and solicitor general. Federal judges will occasionally play a role but will not be emphasized because legal historians have long overemphasized the judges' role at the expense of that of prosecutors and marshals. In the remainder of this chapter we will focus on the attorneys general and the functioning of the Washington office of the Justice Department; later our focus will shift from Washington to the federal court towns of the South and West, and the U.S. attorneys and marshals will then receive their due.

II Members of the First Congress provided for "a meet person learned in the law" to serve as the new nation's lawyer, an officer who would furnish legal advice for the executive branch and protect the interests of the United States before the Supreme Court. The Congress studiously avoided creating a department of law, and for nearly one hundred years this "person learned in the law," the United States' attorney general, paid for his fuel, quarters, and clerk out of his own pocket. The same statute that established the office of attorney general also created the posts of U.S. attorney and marshal. In each federal judicial district, a U.S. attorney would appear on behalf of the United States before the district courts, while a marshal would serve as the courts' executive officer, summoning jurors and witnesses and making arrests. The U.S. attorneys and marshals did not answer to the attorney general, and in fact they had no superior but the president. The various cabinet secretaries would send these field officers advice and requests from time to time but did not have the power to make positive instructions. 12 The first attorney general, Edmund Randolph, was quick to see the folly of having a chief attorney in the capital city and a lesser attorney in each judicial seat, with no relation between the two. At Randolph's request, President George Washington asked Congress for a law that would give the attorney general power to instruct the U.S. attorneys, but Congress failed to act. Other proposals to strengthen the attorney general's office appeared before Congress in 1819, 1822, 1829, 1845, 1854, 1855, 1866, and 1869. But the attorney general remained a minister without portfolio. 13

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Federal Justice • 7 As a lone individual, the attorney general could not provide all the legal services the executive departments required. Although he did provide advice on important legal questions, he could not handle the crush of routine business-drawing up contracts, for instance, or examining land titles. Accordingly, by the time of the Civil War most departments had hired their own attorneys. Congress created "solicitor" positions in the Departments of State, War, Navy, Post Office, Treasury, and in the Bureau of Internal Revenue. 14 Finally, two statutes of the 1860s gave administrative integrity to the nation's legal officers. An 1861 law placed the U.S. attorneys and marshals under the direction of the attorney general, and in 1869 Congressman Thomas A. Jenckes introduced a bill to create a Department of Justice. Jenckes noted that the hiring of government lawyers in Washington had grown reckless, and that legal expenses were mushrooming. The cost-saving nature of the bill can be seen by the fact that it was referred to the House Committee on Retrenchment, a committee set up to scale back government spending after the Civil War. Jenckes also defended his bill by noting that, since each department was hiring its own lawyers, different cabinet officers were getting different legal advice on similar questions. Furthermore, a lawyer who was hired by a cabinet secretary might well give the legal opinion he thought his superior wanted to receive. IS Only about twenty-five congressmen disapproved of Jenckes's plan; they believed that creating a new department was likely to increase, not decrease, government expenses. The bill passed on a voice vote in the House of Representatives in April 1870 and cleared the Senate two months later, also on a voice vote. President Ulysses S. Grant was quick to sign the bill, and the Department of Justice came into being on July 1, 1870. 16 Nine men occupied the position of attorney general during 1870-1893; the first of these was Amos T. Akerman. Akerman was forty-nine years old when he took office; although born in New Hampshire, he had lived in Georgia for twenty-eight years at the time of his appointment. Akerman had served reluctantly in a Confederate "home guard" unit late in the Civil War; he was a firm Unionist before the war and an~ufideviating Republican afterward. Georgia had not yet been readmitted to Congress when Akerman's nomination was made public, and wags were fond of saying that they hoped when Akerman got into office "he may have enough influence to get his state into the Union." Akerman had garnered

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8 • Federal Justice valuable experience as a U.S. attorney in northern Georgia; he was the only individual in the nation's history to be promoted directly from U.S. attorney to attorney general. As the federal prosecutor in north Georgia, Akerman had worked for black political rights; as attorney general, too, much of his energy was directed toward protecting black civil rights in the South under the newly passed Enforcement Acts. Akerman was eased out of office after only eighteen months' service-some felt that he was too much of a crusader for the civil rights of freedmen, while others took offense at his attempts to stymie railroads' hunger for public lands. 17 Akerman's successor was a former U.S. senator from Oregon, George H. Williams. In contrast to Akerman, Williams was willing to recommend pardons for most violators of the Enforcement Acts and was a firm friend of railroads. He darkened the reputation of the Justice Department by his lavish expenditures from the "contingent fund"; he and his wife were often seen at social occasions in the extraordinarily expensive carriage he had purchased with departmental funds, and he was fond of giving gold pens to departmental employees. Such practices were in poor taste during the panic of 1873, and in fact, it developed that during the panic Williams had borrowed Justice Department funds to meet household expenses. As Williams's reputation sank lower, Grant exercised extremely poor judgment-nominating his attorney general . to be chief justice of the United States. While the nomination was pending, Williams obliged one of the senators whose vote he needed for confirmation by agreeing to drop certain Enforcement Act cases in the senator's state. As news of this "deal" became known, even the Republican newspapers begged Grant to reconsider, and the president finally withdrew the nomination. Williams resigned from the attorney generalship in 1875. 18 Two other attorneys general served very briefly under Grant. Edwards Pierrepont, a prominent New York attorney, served long enough to effect a thorough reorganization of the Department of Justice. Pierrepont set up Bureaus of Legal Investigations, Official Correspondence, Criminal Law, the Supreme Court, the Court of Claims, and Chief Clerk. When Grant appointed Pierrepont minister to England, he named Alphonso Taft (father of the future president) attorney general. Taft was a former Whig, a conservative Republican and an Ohio judge at the time of his appointment. A graduate of Yale Law School, Taft was the first attorney

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Federal Justice • 9 general to hold a law degree. He was head of the Justice Department less than eleven months. 19 Charles Devens served a full four-year term as attorney general under President Rutherford B. Hayes. Devens was a quiet, studious man, always motivated by his perception of what was "honorable," or what was his "duty." He tried to follow in Akerman's footsteps and enforce the Enforcement Acts, but black voting and Republican participation in the South proved elusive goals. A Democratic Congress provided the Justice Department with limited funds, and, for much of his tenure, Devens was forced to curtail the department's activities and limit the prosecution of all kinds of cases. He seemed relieved when in 1881 he was able to return to his home state of Massachusetts, where he soon received an appointment to the state supreme court.20 James A. Garfield's chief legal officer was Isaac Wayne MacVeagh, who earlier had served in a variety of posts including that of minister to Turkey. To MacVeagh fell the task of prosecuting the Star Route cases, cases of gross fraud on the part of many of the nation's contractual mail carriers. MacVeagh sensed that the prosecutions would be difficult and was quick to use the excuse of Garfield's death to tender his resignation. The new president, Chester A. Arthur, wanted to show the country that he was moving to punish the perpetrators of Star Route frauds and begged MacVeagh to stay on, but to no avail.21 Arthur's logical second choice was Benjamin Harris Brewster, who was already serving as chief of the department's Star Route prosecutors. Brewster spent three years and a great deal of money overseeing these cases, but the results were disappointing. The defendants had both powerful friends and expensive lawyers, and, by delay and by tampering with jurors and witnesses, most were able to avoid conviction. Brewster was an idealist and used the post of attorney general to lobby Congress for important reforms of the U.S. legal system. He suggested that the old English common law forms for indictments be dropped and that indictments be written in plain English. He suggested dispensing with the reading of bulky indictments at arraignments, instead having the judge or other court officer briefly explain the charges to the defendant. Brewster also suggested that judges allow prosecutors to amend indictments for minor errors rather than throwing them out. But Congress was not ready for Brewster's visionary ideas. 22 With Grover Cleveland's administration came the only Democratic at-

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10 • Federal Justice

torney general in the years 1870 to 1893, Augustus Hill Garland. Garland was ill during much of his tenure and gave uneven attention to the attorney generalship. It is not surprising that Garland-a southern Democrat-did not pursue cases under the Enforcement and Civil Rights acts; in fact he seemed to spend more energy complaining to Congress because black and white prisoners were sometimes held together in federal prisons. Although Cleveland was elected on a platform of a nonpartisan civil service, Garland presided over the gradual replacement of Republican U.S. attorneys and marshals with Democrats. In theory, the removals were "with cause," being made on the basis of complaints that the attorneys or marshals were "obnoxious partisans." By the time Garland left office no Republican attorneys or marshals remained in service. Like Williams, Garland managed to besmirch the reputation of the department. Although the department was handling a case testing the validity of Alexander Graham Bell's telephone patent, Garland held stock in a rival to the Bell Company and stood to gain if Bell lost the suit. When asked about newspaper articles that condemned him, he always replied, "I haven't read them." Finally, he grudgingly admitted that there was "something worthy of thought" in the suggestion that he should have disposed of the stock. But though there is evidence that Cleveland longed for Garland's resignation, Garland served a full four years.23 The final attorney general to be considered was William Henry Harrison Miller, who received his curious name because he had been born during the "log cabin and hard cider" campaign, and his father, a farmer, had passionately supported Harrison. By coincidence, Miller met the elder Harrison's grandson in Indianapolis, and they became law partners. President Benjamin Harrison chose as his attorney general his most trusted adviser, his former partner. Like Devens, Miller took his responsibilities very seriously and was preoccupied with ideas of "honor" and "duty." He kept a close watch on his subordinates and expected them not only to achieve victories in the district courts but to show courtesy and compassion for the defendants being prosecuted. Miller was the last of the attorneys general who worked vigorously for black civil rights in the nineteenth century. Like Devens and Garland, he served a full four years in office and retired only when his chief left office. Miller's retirement in 1893 provides a convenient ending point for the chronological period we will study. After 1893 the landscape of federal law enforcement changed markedly. The creation of new tiers of

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Federal Justice • 11 federal courts, new law enforcement bureaucracies, and whole new classes of federal criminal statutes ushered in a new era of national law enforcement. Also by the early 1890s the faces of both the South and the West were changing. The superintendent of the census announced that there was no longer a frontier line in the West; and in the South new state constitutions would soon disfranchise the remaining black voters in that region.24 The attorney general in the late nineteenth-century United States had many and diverse duties: He was to supervise the spending of the regular appropriation for the expenses of U.S. courts; to provide opinions on points of law for the president and department heads. He represented the United States before the Supreme Court, either in person or through his assistant, the solicitor general. He examined land titles for the department heads, considered requests for presidential pardons, and advised presidents on the constitutionality of bills sent by Congress for executive approval. But the most important duty of the attorney general, and the one emphasized in this book, was his supervision of the U.S. attorneys and marshals. By this supervision he had a hand in all that was done in the federal courts.25 The Washington office of the Justice Department was a kind of command center where a handful of lawyers and clerks attempted to direct the nation's legal business. But "command center" is too modern a term, for, as C. Vann Woodward has written of this period, "Washington was still in the handicraft era of office methods and administrative technique." For Woodward, the perfect symbol of Washington was "the inkstained government copy clerk scribbling away at his ledgers."26 In the Washington office about twenty clerks were responsible for reading the eight thousand letters received each year and routing them to the proper attorney or to the chief clerk. The clerks made two copies of each outgoing letter, the original and a letterbook copy. They also copied tens of thousands of opinions, briefs, contracts, and titles. The office hours nominally were from 9:00 A.M. to 4:00 P.M., but employees did not go home until the work was completed. The doors of the department's offices closed at 2:00 P.M., so that during the last few hours of the day clerks and lawyers were able to work without interruption from office seekers and other visitors. Excepting Sundays, the office was closed only six days per year.27

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12

• Federal Justice

Although it was the clerks and their incessant copying that kept the department running smoothly, the attorneys general did not always give the clerks the respect that was due them. Attorney General Akerman discouraged a young Georgian who sought a clerkship: "If you mean to amount to something in life, a service in a clerkship here is a very poor preparation. In most cases a young man who begins as a clerk never gets very far beyond that place. He becomes timid, dronish, unelastic, and unfit to paddle his own canoe. Study law, ... mix with the people, read industriously, and in ten years you will rejoice that you never subsided into a clerkship."28 That not all the clerks were mindless scribblers can be deduced from the fact that one clerk third-class wrote poetry while he was off dutythe poet Walt Whitman, who had earlier been dismissed as a Navy Department clerk because of his "immoral" writing. Other clerks, such as the chief clerk, the law clerk, and the pardon clerk, wrote letters and legal memoranda on their own. The clerks who went to work for the Justice Department gave up much of the independence enjoyed by the other male members of their families (who were largely self-employed businessmen), but, like other federal employees, they were participating in the building of a new, respectable middle class of federal bureaucrats.29 Of course, both the volume of business and the nature of the work force changed over the course of the twenty-four years considered here. The number of criminal cases handled by the department rose from 6,713 cases in 1873 to 21,935 in 1891. The number of civil cases rose in a like manner. Similarly, the number of U.S. attorneys supervised from Washington rose from forty-two in 1871 to seventy-three in 1893, and the number of marshals rose proportionally. To meet this rising flood of business, some additions and improvements were made in the Washington office. The number of Washington employees rose from fifty-two in 1871 to ninety-eight in 1891, but sixteen of the employees in the latter year had been added only because the department now owned its own building: These sixteen included charwomen, firemen, watchmen, and two "conductors of the elevator." Considering the staggering increase in volume of cases, the rise from fifty-two to eighty-two lawyers and clerks was not adequate, and, indeed, throughout the period attorneys general begged Congress for authorization for a larger Washington staff. Such authorization was only rarely and reluctantly given.3o

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Federal Justice • 13 Office methods changed somewhat as the years wore on. The first female employees were hired in 1874 when the department hired five women copyists; Justice lagged well behind several other departments in the hiring of women. Typewriters first came into use in the Justice Department about 1880; in 1883 Attorney General Brewster reported to Congress that the department employed nine "operatives upon the typewriter," and he sought authorization for three more. '~n expert operative performs more than twice as much work as has been done by the pen," Brewster concluded, "and the work produced by the type-writer is always neat and legible." The department hired its own telegrapher early in the 1880s so that it could communicate with attorneys and marshals with a minimum of delay in important cases. But the modest increase in the office staff and the addition of a few modern methods proved insufficient for handling the burgeoning work load of the Justice Department.31 Letter writing was the very heart of Departmental operations, and even in the first year of the department's existence correspondence was overwhelming. Attorney General Akerman wrote to a friend, "I am on the rack from morning till night, and frequently far into the night, and yet, with all that, I can hardly keep down the pile of business."32 Akerman was firm about the rules of departmental correspondence. He chastised a U.S. attorney: "Your letter relates to several subjects. For convenience of reference and for other reasons, it is desirable that each official letter should relate only to one." A U.S. attorney in Mississippi understood the conventions: He began his letters with the standard "I have the honor to report," even if it meant saying "I have the honor to report that the 'Ku Klux' have commenced their outrages in my district again."33 Particularly difficult were letters from powerful senators and congressmen who sought to influence the department's policy. A letter from Alabama's Senator John Morgan was typical. In 1877 he asked Attorney General Devens to drop all pending Enforcement Act cases in his state. Devens answered that the attorney general was bound to see all the laws faithfully executed; "he cannot exercise the pardoning power." But usually, if a congressman complained of a U.S. attorney's actions, the attorney general ordered an investigation, if only to placate the legislator.34 Citizens from all over the country asked for the legal opinion of the

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Federal Justice

nation's highest legal officer; usually, a form letter was sent in reply stating that the laws prohibited the attorney general from giving opinions to anyone save the president or cabinet officers. In other instances, citizens would report a violation of federal law. During the period of Ku Klux Klan operations in the South hundreds of freedmen reported brutal attacks and violations of their civil rights. In such cases the attorney general could only ask the U.S. attorney to investigate and to prosecute if possible. Some of the citizens' letters related to matters that clearly were not in the jurisdiction of the Justice Department. One man sent thirty names and addresses, then stated, "The persons mentioned herein have been engaged in a scheme to murder me, by producing emissions from me, which has prevented me from doing my professional duty. Now the question is, must I slay these persons? Or will the Department do it?"35 At times the pressure of correspondence grew so strong that attorneys general made serious oversights. In a routine letter to Akerman, an Arizona U.S. attorney happened to mention that it was difficult to conduct business without a federal marshal. A chagrined attorney general replied, "I am surprised to find that no person is acting as Marshal. I. Q. Dickason was nominated and confirmed by the Senate last April. ... Will you give me any information in your power as to whether he intends to accept?"36 But even when the attorneys general were able to keep up with correspondence, they were hampered in directing vigorous enforcement of the laws by a recurring lack of funds. Congress, and particularly the usually Democratic House of Representatives, was not generous with appropriations for the department or for the federal courts, and the attorney general frequently was forced to ask his subordinates in the field to curtail their activities. Devens in 1877 instructed U.S. attorneys to limit the number of witnesses called and to "urge upon the grand juries short sessions."37 When possible, Devens tried to salvage the prosecution of cases by reducing expenses elsewhere. He reported to Congress in 1877 that, whenever a courtroom lease had expired in the states and territories, he had leased smaller courtrooms and smaller offices for judges, attorneys, and marshals. But in that same year he reported that he had been forced to dismiss twenty-nine assistant U.S. attorneys-and these dismissals would result dire~tIy in postponements and dismissals of cases. Devens begged Congress for an adequate appropriation, noting that U.S. attorneys and marshals had been serving without pay, and that many of them

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Federal Justice • 15 had "advanced from their own means the expenses which have been necessary to the operation of the courts."38 Attorney General Garland was forced to send a circular to all his U.S. marshals in April 1885, announcing euphemistically that the appropriation was "in a reduced condition." The Department of Justice was nearly out of money. Garland asked the marshals to send him suggestions for the reduction of expenses. Also he told the marshals that juries should continue to meet, but "their payment will be delayed until the next Congress meets, and possibly till March or July of the year 1886." Short grand jury sessions, unpaid petit jurors, fewer witnesses, smaller offices, laid-off attorneys-this was not the stuff of a vigorous enforcement program.39 Federal prosecutors often responded to this situation with complaints and even resignations. U.S. Attorney Walter Van Dyke's action was not unusual; he sent his resignation to the attorney